Source: New Zealand Privacy Commissioner – Blog
by Michael Webster, Privacy Commissioner
A Hobson’s Pledge billboard that used the photograph of a kuia and her moko kauae generated a lot of discussion both in our office and across media.
Experts are discussing which laws and oversight are relevant here. Is it the Fair-Trading Act or the Advertising Standards Code? We think it’s also a privacy issue because this is about the use and control of personal information, where it causes significant injury to feelings or mana.
It’s also similar in nature to our recent Case Note where an employee had their photo taken that was later used for marketing purposes.
The Privacy Act protects the personal information of all New Zealanders, which includes any information that identifies an individual, such as a picture of a face. In this particular situation we don’t know all the facts about what occurred, so we won’t speak specifically about this photo. Instead, let’s look more broadly at image use.
There are many reasons why people may not want their image taken, including tikanga Māori considerations, which can be significant and sensitive for Māori because of the connection to parts of the body or images that are tapu, including tā moko, mataora or moko kauae.
This is why it’s important to be transparent about how you collect, use, and share personal information. Not only is this a requirement of the Privacy Act, but transparency also helps you build trust and confidence in the way your organisation manages personal information.
Commercial agencies must also make sure that the way personal information is collected is fair and not unreasonably intrusive. This obligation applies even when personal information is collected in a public place.
Even if the personal information is publicly available, agencies need to make sure that using or disclosing it would be fair and reasonable to the relevant individual. Exactly what is unfair or unreasonable will depend on the circumstances of the case, but relevant factors might include the sensitivity of the image or the impact that using it may have on the relevant individual.
The Office of the Privacy Commissioner has a free service for members of the public to make complaints about breaches of their privacy. We look at any relevant privacy principles, whether they have been infringed and how an individual has been impacted. There are options for investigation, conciliation and resolution if the complaint is successful.
Ideally, someone taking or using photos for commercial use should use a consent form where people can consent to photos being taken and then consent to specific purposes for which those photos can be used. Generally, the Privacy Act doesn’t apply to the collection and reporting of news and current affairs by news media.
For more information
Collection of information from subject
Case Note – Individual complains about use and disclosure of their photo
